ALEXANDER M. ROJAS, ET AL., APPELLANTS V. VICTORIA INDEPENDENT
SCHOOL DISTRICT, ET AL.
No. 87-2118
In The Supreme Court Of The United States
October Term, 1988
On Appeal From The United States District Court For The Southern
District Of Texas
Brief For The United States As Amicus Curiae
This submission responds to the Court's invitation to the Solicitor
General to file a brief expressing the views of the United States.
TABLE OF CONTENTS
Question Presented
Statement
Discussion
Conclusion
QUESTION PRESENTED
Whether a school board policy granting the president of the school
board the discretionary power to require the approval of two board
members to place an item on the agenda for board meetings, where the
previous policy enabled each board member himself to place an item on
the agenda, is a "standard, practice, or procedure with respect to
voting" under Section 5 of the Voting Rights Act of 1965, 42 U.S.C.
1973c.
STATEMENT
1. The Victoria Independent School District (School District),
located in Victoria, Texas, is governed by the seven-member Board of
Trustees (School Board). Since 1984, voters have elected five board
members from single-member districts and two members from the entire
School District at-large (Original Complaint 6, Rojas v. Victoria
Independent School District, No. V-87-16 (S.D. Tex.)). /1/ In April
1985, appellant Theresa Gutierrez was elected from a single-member
district with a 51.4% Hispanic population and a 14% black population.
She became the first and only Mexican-American ever elected to the
School Board. J.S. App. 2a-3a; Stip. of Facts 2, Rojas v. Victoria
Independent School District, No. V-87-16 (S.D. Tex.).
2. The School Board may transact business that is "binding on the
(School) District only when it is in session with a quorum present and
minutes are kept" (Stip. of Facts, supra, Exh. 10). A majority of the
members of the School Board constitutes a quorum (Stip. of Facts,
supra, Exh. 5, at 2, Exh. 6, at 3); the School Board's actions are
taken by majority vote (Tex. Educ. Code Ann. Section 17.08(d) (Vernon
1972)). /2/ The School Board conducts its meetings according to the
parliamentary procedures contained in H. Robert, Robert's Rules of
Order, Newly Revised (1981) (Stip. of Facts, supra, Exh. 8, at 2). In
order to present a matter for debate, a board member, having the
floor, must make a formal motion and obtain a second from the floor.
See Robert's Rules of Order, supra, at 326-327.
Under state law, the School Board must publish an agenda before
convening any official meeting. See Texas Open Meetings Act, Tex.
Rev. Civ. Stat. Ann. art. 6252-17, Section 3(A)(a) (Vernon Supp. 1988)
(reprinted at J.S. App. 13a). Although board members may discuss
non-agenda matters, they may not take any action on such matters
beyond placing them on an agenda for a future meeting (ibid.).
According to School District policy, any other action taken on a
matter not on the agenda is voidable. Stip. of Facts, supra, Exh. 5,
at 2, Exh. 6, at 2. /3/
3. Since at least 1979, the School District has had a policy
governing the preparation of agendas for School Board meetings. /4/
In that year, the School District adopted an agenda policy that the
"Superintendent must be notified of all agenda items" and that the
agenda would be closed eight days before a regular meeting (Stip. of
Facts, supra, Exh. 3). That general policy did not clarify whether
board members alone could place items on the agenda or whether members
of the general public also had this privilege. In 1983, the School
District changed its policy to make clear that only board members
could place items on the agenda, that such requests must be in
writing, and that they must be submitted at least four days before a
board meeting (Stip. of Facts, supra, Exh. 4).
In October 1986, a new agenda policy was proposed to the School
Board. That policy would require the request of two board members in
order to place an item on the agenda (Stip. of Facts, supra, Exh. 7,
at 1). On November 20, 1986, the School Board adopted a modified
version of the proposed policy. The new policy provides that
"(r)equests for agenda items may be made by any Board member," and
that "(d)epending on the nature of the items submitted, the President
may require the approval of two Board members to secure placement of
that item on the agenda" (Stip. of Facts, supra, Exh. 8, at 1). /5/
On February 27, 1987, the United States Department of Justice, by
letter, requested the School District to submit to the Department,
under Section 5 of the Voting Rights Act, its policy change requiring
the request of two board members to place an item on the agenda. The
Department stated that "this change in policy would seem to have a
significant impact on the nature and character of the representation
that voters can expect from their individually elected
representative(s) under the newly effective single-member district
plan" (J.S. App. 14a). On March 10, 1987, the School District
explained that the Department had received erroneous information
concerning the policy actually adopted, and attached a copy of the
policy adopted on November 20, 1986, which gave the board president
the discretion to require the approval of two board members to place
an item on the agenda (Stip. of Facts, supra, Exh. 14). There was no
further correspondence between the Department and the School District
over the matter. /6/
4. On March 23, 1987, appellants, Mexican-American residents and
registered voters of the School District, including School Board
member Theresa Gutierrez, filed this action against the School
District and the School Board in the United States District Court for
the Southern District of Texas. /7/ The complaint alleged, among
other claims, /8/ that the adoption of the November 20, 1986, agenda
preparation policy was a voting change requiring preclearance under
Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c, and that
appellees' implementation of that new policy without preclearance
violated the Act. Appellants contended that adoption of the new
agenda policy was a change "with respect to voting" under Section 5
because that policy diminished the power of board members other than
the president and therefore reduced the effectiveness of the
representation available to constituents of the remaining board
members elected from single-member districts. See Appellants' D.C.
Br. 15-19. More specifically, appellants argued that the agenda
policy change had diluted the representation available to the
Mexican-American voters of the only district that had elected a
Mexican-American to the School Board. See Original Complaint, supra,
at 10; Appellants' D.C. Br. 16. /9/
5. The three-judge district court unanimously held that the
challenged agenda policy was not a "change affecting voting" under
Section 5 of the Voting Rights Act (J.S. App. 8a-9a). It observed
that the policy "clearly lies beyond the actual election process
itself and beyond those actions listed (in the Department of Justice
regulation, 28 C.F.R. 51.13)" (J.S. App. 3a). /10/ The court found
that "the only powers exercised by the (School Board) are exercised as
a body" (id. at 4a). Recognizing that rules of parliamentary
procedure require "a second to bring any matter before (the) body for
discussion," the court reasoned that the policy does no more than
"advance the time at which a second becomes requisite to drawing a
matter before the board" (id. at 5a). The court therefore concluded
that the effect of the policy on the actual power of elected board
members was "at most min(u)scule" (id. at 4a). Finally, the court
determined that the policy does not single out appellant Gutierrez for
unfavorable treatment, and that the School Board has never applied the
policy to her disadvantage (id. at 6a). /11/
DISCUSSION
The decision of the district court, holding that the November 20,
1986, agenda preparation policy is not a change affecting voting under
Section 5 of the Voting Rights Act, is correct. The decision does not
involve a substantial question under the Voting Rights Act and does
not conflict with any decision of this Court or any other federal
court. Plenary review is therefore unwarranted and the decision
should be summarily affirmed.
1. Congress enacted Section 5 of the Voting Rights Act as "'a
response to a common practice in some jurisdictions of staying one
step ahead of the federal courts by passing new discriminatory voting
laws as soon as the old ones had been struck down.'" Beer v. United
States, 425 U.S. 130, 140 (1976) (quoting H.R. Rep. No. 196, 94th
Cong., 1st Sess. 57 (1975)). Under Section 5, jurisdictions subject
to the Act must therefore obtain "preclearance" from either the United
States District Court for the District of Columbia or the Attorney
General of the United States, for "any voting qualification or
prerequisite to voting, or standard, practice, or procedure with
respect to voting" different from that in force or effect on the date
the jurisdiction became covered under the Act. 42 U.S.C. 1973c; see
note 1, supra.
Congress intended Section 5 to be applied broadly. The Act itself
defines the terms "vote" and "voting" to include "all action necessary
to make a vote effective in any primary, special, or general
election." 42 U.S.C. 1973l(c)(1). Moreover, the scope of Section 5 is
not limited to changes directly affecting the casting of a ballot.
The Court has recognized that "(t)he right to vote can be affected by
a dilution of voting power as well as by an absolute prohibition on
casting a ballot." Allen v. State Bd. of Elections, 393 U.S. 544, 569
(1969) (change from district to at-large voting for county supervisors
covered by Section 5); see Georgia v. United States, 411 U.S. 526,
534 (1973) (reapportionment covered by Section 5). Thus, Section 5
covers changes that affect "the power of a citizen's vote" (Allen, 393
U.S. at 569), as well as those that "undermine the effectiveness of
voters" (id. at 570).
2. The Voting Rights Act protects voters, not elected officials.
Nonetheless, there are circumstances in which a change in the powers
of elected officials may reduce (or eliminate) the ability of minority
voters to elect those officials with decisionmaking authority.
Consider, for example, a seven-member legislative body that has four
members elected from single-member districts and three members elected
at-large, which then decides to delegate to a committee comprised of
the three members elected at-large the power to decide all fiscal
matters, a power that a majority of the body previously exercised. In
such a case, the change -- limiting the power of the members elected
from single-member districts over fiscal matters -- would affect the
ability of the constituents in those districts to elect members who
decide fiscal matters. That change would certainly limit the power
and effectiveness of voters in the single-member districts and thus
would be covered by Section 5.
Indeed, this Court recognized in Lockhart v. United States, 460
U.S. 125 (1983), that a reallocation of elected officials' power can
be a change within the scope of Section 5. In Lockhart, the city had
changed its governmental structure from a mayor and two commissioners
to a mayor and four council members. Although the city conceded that
the addition of two seats was a change subject to Section 5, it argued
that Section 5 did not apply to the "continuation" of the two old
seats (460 U.S. at 131). The Court rejected this argument, stating
that, "(i)n moving from a three-member commission to a five-member
council, (the city) has changed the nature of the seats at issue"
(ibid.). The Court noted that, as a result of the new governmental
structure, the two "old" seats "constitute only 40% of the council,
rather than 67% of the commission" (ibid.). Thus, the transfer of
power from a three-member body to a five-member body had the potential
for undermining the effectiveness of constituents' votes (id.at
131-132). /12/
3. Against this background, we disagree with the district court's
suggestion that Section 5 can never reach an "(o)rdinary, routine
legislative modification of the duties or authority of elected
officials" (J.S. App. 3a). Depending on the court's definition of
"ordinary" and "routine," such changes may in fact negate the
effectiveness of the vote, and may therefore fall within the scope of
Section 5. At the same time, however, not every change in the powers
of elected officials is a change affecting voting. Here, the district
court correctly held that Section 5 did not cover the change at issue
because the November 20, 1986, agenda preparation policy does not
shift any decisionmaking power, and thus cannot affect a voter's
ability to elect board members who exercise such power.
The November 20, 1986, agenda preparation policy gives the School
Board President the power to require, at his discretion, the request
of two board members to place an item on the agenda. That policy, of
course, does not affect any powers of the School Board as a whole.
The policy also does not affect the power of an individual board
member to influence the outcome of School Board decisions, since those
decisions continue to require a majority vote. Nor does the policy
change the fact that school board members do not have any
decisionmaking power in their individual capacities.
Indeed, the agenda preparation policy does not even affect a board
member's ability to have matters of interest to his constituents
discussed at board meetings. Although the policy may, when
implemented, prohibit a member from placing a particular item on the
agenda (when that member cannot obtain a second request for the agenda
item), merely placing an item on the agenda is not a sufficient
condition for full discussion or board action, and thus does not
ensure that either will occur. Under applicable parliamentary
procedure, the sponsoring member must obtain a second either to
initiate discussion or to propose a resolution for a vote. /13/ Thus,
as the district court concluded, "at most, the effect of the
challenged change is to advance the time at which a second becomes
requisite to drawing a matter before the board" (J.S. App. 5a).
Furthermore, board members may address, in a limited fashion,
matters not on the agenda, and may take steps to place such matters on
the agenda for the next meeting. Thus, an individual member can
create a public record of the School Board's refusal to place an item
on the agenda by requesting at a meeting that the item be placed on
the agenda for the next meeting. See also Appellees' Mot. to Dis. or
Aff. App. 7a-9a. In sum, the agenda preparation policy's restriction
on an individual board member's power, which does not undermine the
effectiveness of his constituents' votes, does not fall within the
scopr of Section 5.
4. Contrary to appellants' suggestion (J.S. 16), the district
court's decision does not conflict with Hardy v. Wallace, 603 F. Supp.
174 (N.D. Ala. 1985) (three-judge court), and Horry County v. United
States, 449 F. Supp. 990 (D.D.C. 1978) (three-judge court). In Hardy,
the court concluded that a state statute providing for the governor to
appoint members of a county racing commission, where formerly the
county's state legislative delegation appointed those members, was a
change within the meaning of Section 5 because of "its effect on the
power of the voters." 603 F. Supp. at 178. The court stated that "the
transfer of appointment authority to the governor, over 99.7% of whose
constituents are not inhabitants of Greene County, substantially
dilutes the power of the voters in Greene County by effectively
eliminating the power of such voters over the Commission." Id. at 179.
In other words, the transfer of power in Hardy did affect the ability
of the voters in Greene County to elect persons with decisionmaking
authority.
Similarly, in Horry County the court held that a state statute
providing for the direct election of a county board of commissioners,
where the governor previously appointed commissioners upon the
recommendation of the county legislative delegation, and giving that
board additional legislative authority, was also a change subject to
Section 5. The court stated that the statute could dilute voting
rights, and would "reallocate() governmental powers among elected
officials voted upon by different constituencies." 449 F. Supp. at
995. If minority voters had more influence on the choice of governor
or the legislative delegation, the change to direct elections could
diminish the effectiveness of those votes; as a result, minority
voters would have less influence in the selection of the county
commissioners. See id. at 995-996.
Thus, both Hardy and Horry County involved changes in the
allocation of power among elected officials which, in turn, affected
certain voters' ability to elect officials with decisionmaking power.
In this case, however, the November 20, 1986, agenda preparation
policy has no effect on the power of individual board members or the
School Board itself to transact official business. The policy,
therefore, does not undermine the effectiveness of any individual's
vote and consequently falls outside the scope of Section 5 of the
Voting Rights Act. /14/
CONCLUSION
The judgment of the district court should be affirmed.
Respectfully submitted.
WILLIAM C. BRYSON
Acting Solicitor General
JAMES P. TURNER
Acting Assistant Attorney General
THOMAS W. MERRILL
Deputy Solicitor General
MICHAEL R. LAZERWITZ
Assistant to the Solicitor General
JESSICA DUNSAY SILVER
THOMAS E. CHANDLER
Attorneys
MARCH 1989
/1/ The Voting Rights Act of 1965 was extended to the State of
Texas in 1975, covering changes in election procedures from those in
effect on November 1, 1972. See 40 Fed. Reg. 43,746 (1975). Section
5 of the Act, 42 U.S.C. 1973c, bars covered jurisdictions from
implementing any "voting qualification or prerequisite to voting, or
standard, practice, or procedure with respect to voting" different
from that in force or effect on the date the jurisdiction became
covered under the Voting Rights Act, without first obtaining
preclearance from the United States District Court for the District of
Columbia or the Attorney General of the United States.
/2/ "Board members have no authority except when functioning as a
member of the (School) Board in an official meeting" (Stip. of Facts,
supra, Exh. 9).
/3/ School Board policy also provides for two periods of public
comment at the Board's regular meetings, one at the beginning for the
discussion of items on the agenda, and another after "adjournment of
the regular business meeting * * * for issues of citizen interest not
on the agenda" (Addendum to Joint Stip. of Facts Exh. 15, at 1, Rojas
v. Victoria Independent School District, No. V-87-16 (S.D. Tex.)).
/4/ The record does not show the School District's policy or
practice on November 1, 1972, the Section 5 coverage date for Texas.
See not 1, supra. Apparently, the parties litigated this action on
the assumption that the challenged agenda policy differed from that in
effect on November 1, 1972.
/5/ The president of the School Board is a board member selected by
the members at the first meeting after each election. See Tex. Educ.
Code Ann. Section 23.19(d)(1) (Vernon 1987).
/6/ The Department's letter is not an official determination that
Section 5 of the Voting Rights Act applies to the matter at issue. It
is the Department's practice, when informed of a matter that might
require Section 5 review, to request a submission of additional
information that would clarify the question of coverage under the
Voting Rights Act.
In this case, the Department sent the School Board the February 27,
1987, letter largely out of concern over the timing of the November
20, 1986, agenda policy change. Just six days earlier, on November
14, 1986, the Department had prevailed in a Section 5 enforcement
action against the School District. That action challenged a numbered
post requirement that the District had implemented in 1985 for the two
at-large positions on the School Board. See United States v. Victoria
Independent School District, No. V-86-17 (S.D. Tex. Nov. 14, 1986).
Appellees have sought no further review of that decision.
/7/ Other named defendants included the School District
Superintendent, the Victoria County Clerk, and the individual members
of the School Board.
/8/ The complaint also alleged that the School District's use of
certain language in the ballot instructions for a special election for
the at-large seats on the School Board "effectuates an anti-single
shot voting requirement" that had not been precleared. Original
Complaint 8, Rojas v. Victoria Independent School District, No.
V-87-16 (S.D. Tex.). The district court severed this portion of the
lawsuit and joined it with the earlier action filed by the United
States against the School District. See note 6, supra.
/9/ Appellants also contended that the agenda policy change has
"the potential for discrimination" because the School Board President
could require two votes whenever appellant Gutierrez, the only
Mexican-American board member, sought to place an item on the agenda
that had special significance to the Mexican-American community.
Appellants' D.C. Br. 30; see id. at 19-31. Finally, appellants
emphasized that during the time period surrounding the adoption of the
new agenda policy, Gutierrez and the Mexican-American community inthe
School District repeatedly opposed the policies and proposals
advocated by the majority of the School Board members. See e.g.,
Appellants' D.C. Reply Br. 2-8. Appellants thus suggested that the
School Board changed its agenda policy in order to restrict
Gutierrez's ability to represent her constituents.
Appellants also filed a motion to convene a three-judge court under
42 U.S.C. 1973c. On June 2, 1987, the district court denied
appellees' motion to dismiss under Fed. R. Civ. P. 12(b)(6), and
granted appellants' motion to convene a three-judge court. Order,
Rojas v. Victoria Independent School District. No. V-87-16 (June 2,
1987).
/10/ Part 51 of Title 28 of the Code of Federal Regulations,
chapter 1, sets forth the procedures governing the administration of
Section 5 of the Voting Rights Act of 1965. Section 51.13 is a
non-exclusive list of examples of changes affecting voting.
/11/ As the court stated, "(i)t seems plain to us that if Mrs.
Gutierrez is unable to persuade even one other trustee to join her in
placing a matter on the board's agenda, she would have had no better
success in procuring a second should she have moved it at a meeting --
let alone in collecting the four votes required to pass it" (J.S. App.
5a-6a).
/12/ In exercising its administrative responsibilities under
Section 5, the Department of Justic has under certain circumstances
treated changes in elected officials' power as covered: (1) Mobile,
Alabama (March 2, 1976), involving assignment of specific
administrative functions to each commissioner; (2) LaPorte, Texas
(December 27, 1979), involving an increase in the number of council
positions from five to seven and changing the role of the council
members from legislative/administrative to purely legislative; (3)
City of Brunswick and Glynn County, Georgia (August 16, 1982),
involving a consolidation of the city and county governments and the
respective boards of commissioners; and (4) Waycross, Georgia
(February 6, 1988), involving changes in the power and duties of the
mayor. See also Brief for the United States 15-16, Lockhart v. United
States, 460 U.S. 125 (1983) (No. 81-802) (contending that the city's
adoption of a home rule charter and the resulting restructuring of the
city's government was "a redistribution of powers among officials
elected by different constituencies" and thus covered by Section 5);
Brief for the United States as Amicus Curiae Urging Reversal 21-27,
McCain v. Lybrand, 465 U.S. 236 (1984) (No. 82-282) (arguing that the
transfer of power to county government officials by the implementation
of home rule was subject to Section 5).
Moreover, the Department has considered adding to the list of
voting changes contained in 28 C.F.R. 51.13 an example that would
reflect the decisions in McCain v. Lybrand, supra, Hardy v. Wallace,
603 F. Supp. 174 (N.D. Ala. 1985) (three-judge court), discussed
infra, and Horry County v. United States, 449 F. Supp. 990 (D.D.C.
1978) (three-judge court), discussed infra, concerning the
reallocation of governmental power. The Department declined to do so,
stating, "(w)hile we agree that some reallocations of authority are
covered by Section 5 (e.g., implementation of 'home rule'), we do not
believe that a sufficiently clear principle has yet emerged
distinguishing covered from noncovered reallocations to enable us to
expand our list of illustrative examples in a helpful way." 52 Fed.
Reg. 488 (1987).
/13/ See Robert's Rules of Order 26-34.
/14/ There is no merit to appellants' contention (J.S. 20-21) that
the district court improperly based its decision on a determination
that the new policy was in fact not discriminatory. To be sure, the
court noted that appellants might be able to mount a constitutional
challenge if the policy were applied in a discriminatory manner (J.S.
App. 6a & n.5 (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)). That
observation, however, simply cannot be construed as a ruling that the
change affects voting but falls outside the scope of Section 5 because
it is not discriminatory. Indeed, as the district court emphasized,
appellants conceded "that in fact (the policy) has yet to be applied
to any measure" (J.S. App. 6a n.5 (emphasis in original)).
We recognize that an allegation that appellees purposefully adopted
the new agenda policy in order to limit the ability of the only
Mexican-American board member to raise matters at School Board
meetings could give rise to a cause of action on behalf of that board
member under the Fourteenth Amendment and 42 U.S.C. 1983. But as
explained above, such an action would not constitute a change
affecting voting under Section 5 of the Voting Rights Act.